Gengezi Mgidlana vs. Sunday Times

Tue, Oct 16, 2018

Ruling by the Press Ombud

16 October 2018

Particulars

Lodged by: Mr Gengezi Mgidlana

Date of article: 15 July 2018

Headline: Parliament seeks luxury perks for top official, security vetting of staff – Proposal could mean taxpayers foot the bill for business class flights and five-star hotel stays for suspended secretary and his entourage

Online: Yes

Author of article: Andisiwe Makinana

Respondent: Susan Smuts, internal ombud

Complaint

The gist of Mgidlana’s complaint is that the reportage incorrectly and unfairly portrayed a normal exercise of policy review by Parliament to be about him (who was on precautionary suspension and who had nothing to do with that exercise) – which has resulted in a malicious, one-sided article that deliberately has tarnished his dignity and reputation.

In particular, he complains that the:

article contained inaccurate information and / or inferences, mainly pertaining to the following statements:

“Parliament wants to give its Secretary and his entourage free rein to fly business class and sleep in five-star hotels at taxpayers’ expense”;

“Parliament has never divulged its policies on travel”; and

“Parliament wants all staff to obtain top level security clearance certificates and take oaths of secrecy”;

headline did not reasonably reflect the content of the article and that the accompanying use of his photo was unfair; and

journalist did not afford him a right of reply.

He asks for the harshest sanction possible, which should include an apology to him, a retraction of the offensive article, and a prominently placed reply by him to the allegations and opinions paraded as facts by the newspaper.

The text

The story said that Parliament wanted to give its secretary (STP) and his entourage free rein to fly business class and sleep in five-star hotels at taxpayers’ expense. It also wanted all staff to obtain top-level security clearances and take oaths of secrecy.

These proposals were reportedly contained in a draft policy document, seen by the Sunday Times, that had been discussed at workshops in Parliament.

Regarding Mgidlana, the journalist reported: “Parliament has never divulged what its policy is on travel, but Gengezi Mgidlana, who now holds the top post of secretary, is on suspension while he faces charges that include wasting taxpayers' money during domestic and international travel with his wife. He spent R4-million in two years on such trips. He is also alleged to have awarded himself a bursary, and an audit committee of parliament last year found that Mgidlana was ‘wasting money’ by staying at five-star hotels despite calls for belt-tightening. Mgidlana is undergoing a disciplinary process related to alleged breaches of the Financial Management of Parliament and Provincial Legislatures Act, parliamentary policies and the National Road Traffic Act.”

Makinana added it was the security management proposals in the policy documents that were likely to have many members of staff up in arms. She quoted the lobby group Right2Know, that condemned this proposal as contrary to the principles of open democracy and warned they could be replicated in other arms of state if adopted for parliament.

The arguments

I have omitted the correspondence regarding the merits of the charges that Mgidlana is facing because:

the story did not pronounce on that issue; and

this office can in any case not decide if he was guilty or not.

The multitude of repetitions in the correspondence with this office has, with respect, not made adjudication easier.

The gist of the complaint

MGIDLANA complains that the reportage portrayed a normal exercise of policy review by Parliament (organized by Parliament’s administration for its employees and in fulfilment of its own objectives) to be about him, while the:

review took place in his absence (as he was on precautionary suspension and had nothing to do with that matter) – and yet he was made a subject of the article;

policy on Travel, Accommodation and Subsistence and Travel Allowance had existed before he joined Parliament; and

policy was not for office bearers in their personal capacity.

He concludes: “As such, it is not clear why [the reporter] is personalizing the proposed policy changes and portraying them as changes intended for [him].”

SMUTS says Mgidlana was not involved in these discussions, and the story did not imply that he was, and neither was he the focus of the story. He was mentioned in the story because the expense which his previous travel arrangements have incurred for Parliament have been questioned – not only by journalists, but also by members of parliament in parliamentary debates and by Parliament’s audit committee.

She says the latter found that Mgidlana had run up unjustifiable expenses by taking his wife to funerals and fashion shows, among other things – and adds that readers would have been aware of these and other controversies regarding Mgidlana’s past conduct.

She argues, “The parliamentary discussions which are the focus of his complaint are pertinent to this history. It is for this reason that we included a reference to them in the story.”

The internal ombud says there is nothing in the Press Code that prevents the newspaper from including this reference, and neither is it contrary to the practice of good journalism.

“On the contrary, it is in the public interest to report on such policies. It is also in the public interest to inform readers about the way such policies have been implemented in the past, what controversies may have arisen and what changes, if any, were introduced as a result. The article should be read in this light.”

The internal ombud submits that the STP was a top official, and that he could travel in business class and argues: “Mr Mgidlana is the present incumbent. His travels have attracted attention and there is a legitimate reason to include a reference to these.”

“We zoomed in on this aspect because of the past controversies relating to his conduct and the repercussions they have had. Furthermore, the proposals were discussed in the workshops. And there is a clear public interest in reporting on this fact. There is no reason why we should be prevented from doing so. It is possible both for him to have travelled within the limits set by parliament and also to have been profligate in the context of belt-tightening. There is no reason why we should not raise questions about how taxpayers’ money is spent,” she argues.

She concludes that the newspaper did not attend the policy workshops, as they were held for parliamentary staff only. “But our reporter obtained a copy of the draft document, spoke to stakeholders and wrote the story from that. We submit that this is reasonable conduct and cannot be faulted,” she concludes.

MGIDLANA says the newspaper’s admission that the story was about a workshop organised by Parliament, for its staff members, in his absence and dealing with general issues for all categories of staff is of critical importance – and yet, it still went ahead to personalise the matter to him by:

stating Parliament sought perks for its top official; and

publishing his picture to point out to who this top official was.

This, he says, has misinformed readers from the outset – while the newspaper and the journalist were fully aware that there were no new proposals or submissions made by Parliament related to the travel facilities accorded to the post of the STP.

He argues that, as this process had nothing to do with him, it was unfair and malicious to infer negative connotations to him.

He says: “This directs the reader … to conclude that there seems to be relentless plundering of state resources on a continued basis by [him] who is accused maliciously for doing his job.” This, he asserts, amounted to a gross injustice and a violation of his individual rights and tramples on the spirit and letter of the Press Code.

He calls the reportage a “trial by media”, and says the Sunday Times is waging a campaign against him, irrespective of whether he is wrong or right on this issue.

He argues it in the public interest for the readers to know:

the truth, namely that these facilities existed some time ago, and not the version of the truth that appeals to the newspaper;

the array of policies that were reviewed at the workshop and new proposals that were made for staff and stakeholders; and

that these policy proposals are for the entire administration and not specifically directed and targeted at the STP, as stated in the article and its headline.

Inaccurate / misleading information, inferences

“Parliament wants to give its Secretary and his entourage free rein to fly business class and sleep in five-star hotels at taxpayers’ expense”.

MGIDLANA complains that this sentence was deliberately misleading, in several respects.

Parliament: He says the Parliament’s administration is a matter of public information and is governed by an Act. These processes are buttressed by policies that apply to all staff and not to him only. He says the journalist also did not explain to the reader that the issue of travel was related to traveling by officials, to a destination determined by Parliament, and to do parliamentary business.

The STP and his entourage: He says that, as a public servant, he does not have an entourage, nor is there any policy or legislation that refers to such. He says the use of this word was meant to direct the reader to the fetish royal image that the reporter wanted to create of him, and merely reflected her bias as well as that of the publication. He says the STP normally travels with the executive assistant and when there is a need, and when travelling on international trips, he normally travels with three or four senior parliamentary managers. Therefore, he says, he only has colleagues who support him and, when required and necessary, accompany him on his trips.

Free reign; at the taxpayers’ expense: He says these words were used to sensationalize the issue and to deliberately mislead the public. He submits: “It is not clear why [the reporter] is claiming that Parliament wants to give its Secretary and his entourage free rein because whatever policy decisions are taken by the institution, they are not taken to suit the wishes or preferences of the individuals. In other words, the benefits are not for [him] as insinuated in the article but are for the Office.” He says there are several regulations in place in Parliament which provide guidance on how the institution’s finances and resources should be utilized – while the usage of the word “free rein” presupposed a lawless, free for all, unregulated process or excesses and that the flights and accommodation will be done willy-nilly without any restrictions.

He says many STPs who came before him had used that policy provision, including travelling in business class, and asks why his name was being used and singled out in this instance. “The only answer is that, the journalist is building on the narrative created by her or her associates who seeks to portray [him] as this bad and irresponsible Accounting Officer who abuses tax payers (sic) money,” he retorts.

SMUTS says the processes which Mgidlana explains regarding the administration of Parliament are not directly relevant to the complaint. “They do not buttress his claim that we were misleading in our article. It is also self-evident that the travel referred to in the discussions is travel for Parliamentary business,” she says.

The internal ombud adds: According to several dictionaries the word “entourage” means “a group of people attending or surrounding an important person”. She points out that Mgidlana himself mentions that he works and travels with colleagues to attend to the activities of Parliament – he even says he “normally travels with 3 or four senior parliamentary managers”.

She says the story did not state that Mgidlana’s entourage was “huge” – this, she says, is a figment of his imagination.

Smuts also refers to the story where it says: “…an audit committee of parliament last year found Mgidlana was ‘wasting money’ by staying at five-star hotels despite calls for belt-tightening’.” She says he has not denied the trips, and his conduct invited the sort of criticism that the audit committee has made.

MGIDLANA replies that the processes of the administration of Parliament are indeed relevant, since the essence of the accusations was about maladministration and wastage of resources.

He adds it is not clear what “free reign” the article referred to because Parliament is an institution, like all the other state agencies, and is regulated by laws and policies that dictate how business must be conducted.

Citing parliamentary policy, he concludes that staff travelling with their principals, the presiding or accounting officer, are permitted to travel with their principals whilst on official duty.

He also says there is no finding from any audit process that has made a declaration of fruitless, irregular and wasteful expenditure done by him as the STP, either by an internal or an external audit (the AG), and the newspaper knows this as it was informed accordingly.

As a matter of fact, he adds, all the trips undertaken by the STP were in his official capacity – he says those were properly procured, and reports were provided to the relevant structures.

None of these accusations have been proved or declared correct by a competent tribunal, he concludes.

“Parliament has never divulged its policies on travel”

MGIDLANA complains that this statement is simply untrue. He says as the STP he has always responded to each question, and adds that the journalist and Sunday Times could have refreshed their failing memory by asking for these documents from Parliament before making such a statement.

For example, he says the newspaper and the journalist were advised in 2016 by Parliament that the travel, accommodation and subsistence allowance policy provides for the STP as the senior official to travel business class, be accommodated in a five-star hotel and make use of a driver.

SMUTS says a search for “travel policy” on Parliament’s website does not return the document. She says the reporter has on several occasions asked for the substance of the travel policies, but has not received a direct and comprehensive response to her query. “While we certainly could have asked for a copy of the policy, as Mr Mgidlana suggests, there is no need for us to have done so as parliament’s spokespeople are equipped to answer our queries,” she submits.

The internal ombud adds that the reporter has obtained a copy of the draft policy documents and wrote the story on that basis.

MGIDLANA replies the newspaper should know that organisations never put their internal policies on a public website. He calls the argument that the newspaper could not find such policies from the website a “lame excuse” for not doing the right thing.

He adds that at several media briefings and statements, Parliament has been on record on its travel policy. In fact, he says, the Parliamentary website contains such statements. As such, he argues, it should have been easy for the journalist to either visit the website or to obtain a copy of the travel policy from colleagues at Parliament’s media section.

He also argues that, on the one hand, the article stated that Parliament has never divulged its policy on travel – meaning that Makinana also did not know what the institution’s policy on travel entailed – while, on the other hand, the journalist also seemed to believe that he had wasted taxpayers’ money in this regard.

“Parliament wants all staff to obtain top level security clearance certificate and take oaths of secrecy”

MGIDLANA complains that this statement was inaccurate and misleading. He says the new proposed policy did not say that “all staff” should obtain “top level” security clearance – it merely stated that reference checks should be conducted in a fair and objective manner, and that a procedure shall be followed with regard to security vetting before appointing someone to a post.

He asks where it is written that all staff should obtain top level security clearance.

He asserts that the policy document referred to is the revised and updated document of an existing set of policies that applies to all staff since 2006 and has been updated on regular intervals. It is not specifically meant for or directed at the so-called “top official”. He adds that the changes to the policies are occasioned by the need to bring the policy to up to date with the developments that have taken place in the institution over the period of time and to align them to its strategic vision.

SMUTS says Mgidlana, somewhat notoriously, in 2015 rescreened parliamentary employees who were given “security awareness presentations” by the State Security Agency (SSA). Intelligence officers told parliamentary staff that certain NGOs, specifically Right2Know, were agents for foreign governments, and that two journalists were spies. They also said they would not hesitate to screen WhatsApp, SMSs and emails.

Smuts quotes Parliament’s spokesperson Moloto Mothapo as saying that top-level security clearance was necessary to ensure potential employees had not been involved in crimes or actions intended to overthrow democracy. “This in itself should be enough to justify our reporting. However, we also obtained confirmation from the chairman of the National Education, Health and Allied Workers Union branch in parliament. He told us it did not make sense for everyone to have top-secret vetting as most parliamentary staff dealt with public documents. Both people commented on the proposal for all staff to obtain top level security clearance because it was part of the workshopped proposals and was discussed by staff,” she submits.

MGIDLANA wants to know what was “notorious” about state officials being vetted by another state agency, or about Parliament conducting a routing exercise that it has been done before, or about awareness campaigns before an exercise is conducted.

He says anyone working for the state knows that security screening and vetting occurs ever every five to ten years, depending on the clearance certificate one has. Therefore, this exercise is done regularly as a matter of cause.

He adds that Parliament provided a statement on the reasons for vetting and responded to the spurious allegations repeated in this response by the Sunday Times, that has once again based its reportage on unsubstantiated accusations to further the union’s agenda.

He says Makinana and Sunday Times refer to the period 2016/17 when the process of vetting was conducted and claim that the demand was that all staff required top secret. This, he says, is incorrect. He adds that he cannot comment on the new proposals because he did not attend the workshop.

The vetting of staff has been the policy of Parliament and has been noted even in advertisements for posts for longer than 2006 and that is not new, he concludes.

Misleading headline

The headline read: Parliament: Seeks perks for top official, security vetting of staff.

MGIDLANA complains the headline left the incorrect impression that he had been seeking perks for himself. He says if readers wondered who this “top official” is, the publication of his picture cleared that up. He adds that the newspaper has personalized the matter by publishing his photo.

He argues that the headline set the tone for the reader to understand, digest and interpret the entire article in the context of “top official” that “seeks perks”. He says this presented him, without any shred of substantiating evidence, as an unprofessional person with no moral standards.

This, he says, has prejudiced him from the outset – he was deliberately being associated with a process that he had no knowledge of in its current form, had no control over, and did not participate in.

SMUTS says the headline fairly reflected the content of the article.

She adds it was also clear that it was Parliament, rather than Mgidlana, who was seeking the perks. She says nowhere did the article state or suggest that Mgidlana had sought out perks or that he had been involved in drafting the policy proposals. In fact, she says, the first mention of his name in the article was to state that he was on suspension – which suggested that he was unable to participate in the processes being reported upon.

She denies that the article has portrayed Mgidlana as an “unprofessional person with no moral standards”.

No right of reply

MGIDLANA says the subjects in this article were he, Parliament, and members of staff – the journalist rightfully contacted two of the subjects, but she unfairly ignored another equally important subject, namely himself.

He says that, given the far-reaching implications the article had for his dignity and reputation, it was prudent and expected of the journalist to solicit his views on the proposed policy matters in question.

SMUTS says the newspaper was not obliged to seek comment from Mgidlana, as he was not the focus of the story. “Parliament was the focus of the story and we correctly sought comment from the institution,” she submits.

She adds the fact that Mgidlana faced charges of wasting public money, was alleged to have awarded himself a bursary, and was alleged to have breached various acts and policies was a matter of public record. “It is hard to see, in these circumstances, how seeking his comment would have added anything to the story insofar as these facts are concerned,” she argues.

She says Mgidlana’s complaint rests on a misreading of the article in that he asserts it suggests he was seeking the changes to the policy. Had he been the one seeking the changes, then – in light of his history – it may well have been appropriate to seek his comment. “But since this was not what we were reporting, there was no need to seek his comment,” she argues.

MGIDLANA says the question is not whether he was the focus of the story or not, but rather whether he was the subject of critical reportage – which he says he was.

He says it is rather the newspaper that is misunderstanding his complaint, because the headline and the use of his photo directed and conditioned the reader to believe that he had sought the so-called perks mainly for himself.

Analysis

The salient issues are if the:

article:

unfairly honed in on Mgidlana (or “personalized” the matter, to use his word) – creating the impression that the possible changes in the travel policy were intended to benefit him (which includes the references to “free reign” and “entourage”, as well as the statement in the headline and the use of his picture);

falsely stated that Parliament:

has never divulged information about its travel policies;

wanted “all staff” to obtain top level security clearance;

journalist should have given him a right of reply; and

complainant’s dignity and reputation have been tarnished as a result of the reportage.

Personalised, personal benefit

The newspaper was justified in mentioning Mgidlana because travel expenses were the focus of a parliamentary workshop and “the expense which his previous travel arrangements have incurred for parliament have been questioned”, as Smuts put it.

The link between the issues was there, and the newspaper picked it up.

The issue, therefore, is not if the reportage should have mentioned him, but how it should have done so.

This is the crux of the matter: The story did not say or suggest that Mgidlana was seeking perks for his personal benefit, as he contends – the headline clearly stated that Parliament was the one that sought the perks, and not Mgidlana. This was supported by the first words of the introductory sentence that read: “Parliament wants to give…” (Emphasis added.)

The journalist elaborated on this issue lower down in the story by reporting: “[Parliamentary spokesperson] Mothapo said the travel policy was also being canvassed with the entire staff.” (Emphasis added.)

It was also immediately clear that:

Parliament considered perks for its STP, and not for Mgidlana in his personal capacity; and

Mgidlana was not the only one involved, as “his entourage” was in the picture as well.

It did – as the introductory sentence already stated that the perks were not intended for the STP only.

After perusing Parliament’s draft document on the proposals, I am satisfied that the reportage regarding this matter was justified. For example, the following statement, as recorded in the story, is true: “The Secretary may travel in business class.” Immediately following that, the document also states that an employee accompanying the STP (and other top officials) on the same flight “may travel in the same class”. It also allows for an employee who travels longer than five hours on an international flight to do so in business class (while the STP may do so irrespective of the length of the flight).

I therefore conclude the complaint that the story:

did not suggest that Mgidlana was seeking for perks;

sufficiently balanced that the perks sought by Parliament for its STP with the other part of the truth, namely that he was not the only one involved in the matter; and

personalised the matter, to some extent, but not unjustifiably so.

The complaint about Mgidlana’s entourage is weak – he himself admits that an entourage (it does not have to be a big one) frequently travelled with him.

Given the proposals as mentioned above, I also do not blame the newspaper for using the words “free reign” – the proposals say the STP “may” travel in business class and “may” stay in five-star hotels, which implies this would not necessarily be the case as it would depend on the Secretary’s own preferences and decisions.

It is true, as Mgidlana argues, that Parliament was regulated by laws and policies that dictated how business should be conducted. But it is also true that the decisions to travel business class and stay in five-star hotels were those of the STP, as these matters were not mandatory.

Information about travel policies not divulged

As this matter is difficult to adjudicate, I have sent Mothapo twice the following message:

“Dear Moloto,

“I trust that this email finds you in good health and spirit.

“I am dealing with a complaint by Mr Mgidlana against Sunday Times, who wrote that Parliament “has never divulged its policies on travel”. The newspaper says there is no such information on its website, and its spokespeople also never responded to requests for those policies.

“I need your comment on this, please, if you don’t mind.”

I have not received a response from him, and am therefore reluctant to decide who is right and wrong on this issue.

‘All staff’ to obtain security clearance

It is curious that Mgidlana, who admits that he did not attend the workshops and therefore did not know the content of the suggestions or recommendations that have emerged, seemingly does know enough to complain that this information was false and misleading. He himself even comments in his correspondence with this office that he cannot comment on the new proposals because he did not attend the workshop.

Therefore, I do not know how he can assert that the new proposed policy:

did not say that “all staff” should obtain “top level” security clearance;

merely stated that reference checks should be conducted in a fair and objective manner; and

asked that a procedure shall be followed with regard to security vetting before appointing someone to a post.

He even asks where it is written that all staff should obtain top-level security clearance.

Well, it is written in the draft document. Section 8.1.6 states: “All applicants and employees must be vetted to the level of Top Secret by the SSA.”

This has justified the reportage on this matter.

No right of reply

Because the reportage did not say or suggest that Mgidlana was seeking perks, he was not the subject of critical reportage – even though he could be described as a subject of reportage.

For this reason, the newspaper was not obliged to ask him for comment.

Dignity, reputation

For the same reason as stated above, I do not believe that the reportage has tarnished Mgidlana’s dignity and reputation.

Finding

The complaint is dismissed in its entirety.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.